Well, that’s how this decision will no doubt be portrayed. This is the case over the cross in the Mojave Desert. It’s interesting when the Justices weigh in with so many different angles.
pp 1-5 – syllabus (overview)
6-24 – Kennedy’s opinion (with Roberts and, in part, Alito)
25 – Roberts adds a humorous note (see below)
26-32 – Alito explains why he thinks it can just be finished off instead of remanded
33-39 – Scalia (with Thomas) explains why he thinks Buono lacked standing to begin with
40-64 – Stevens’ dissent (with Ginsburg and Sotomayor)
65-71 – Breyer’s dissent that it’s not an Establishment Clause question but rather the ‘law of injunctions’
At oral argument, respondent’s counsel stated that it “likely would be consistent with the injunction” for the Government to tear down the cross, sell the land to the Veterans of Foreign Wars, and return the cross to them, with the VFW immediately raising the cross again. Tr. of Oral Arg. 44. I do not see how it can make a difference for the Government to skip that empty ritual and do what Congress told it to do—sell the land with the cross on it. “The Constitution deals with substance, not shadows.” Cummings v. Missouri, 4 Wall. 277, 325 (1867).